Judge Orders Change in Plan to Distribute Klamath River Water

By DEAN E. MURPHY

Published: July 18, 2003

OAKLAND, Calif., July 17—
A federal judge here has ruled that a Bush administration plan for distributing water from the Klamath River, where 33,000 salmon died last year in one of the country's biggest fish kills, must be revised because it is based on a biological opinion that violates the Endangered Species Act.

The ruling by the judge, Saundra Brown Armstrong of Federal District Court, was made public today and hailed by opponents of the water plan as a major environmental victory. But administration officials also expressed satisfaction with the ruling, particularly because the judge indicated that water deliveries this year would not be affected.

''We are glad to see operations can continue through this summer,'' said Blain Rethmeier, a spokesman for the Justice Department, which represented the National Marine Fisheries Service, one of the federal agencies named in the lawsuit and the one that was the author of the biological opinion.

For more than a year the Bush administration has been at odds with fishermen, conservation groups and some Indian tribes over water flows for the river. Those flows are managed by the Bureau of Reclamation; the river runs through southern Oregon and northern California.

The groups argue that the administration's management plan sets aside too much water for the irrigation of farmland in the Klamath basin at the expense of fish, including the coho salmon, which is listed as threatened under the Endangered Species Act. The groups took the administration to court in an effort to keep some of the agricultural diversions in the river.

Central to the conflict has been the biological opinion by the Fisheries Service, which is the basis of the plan's water allocations.

Judge Armstrong said parts of the opinion were ''arbitrary and capricious'' and ordered that they be amended. Specifically, the judge said the biological opinion relied improperly on the states of California and Oregon and private parties to ensure that fish in the river received enough water over the long term.

Environmental groups had made the same argument.

''A promise to provide a fraction of the water salmon need, sometime in the future, from somewhere, meets neither the requirements of the law nor of science,'' Kristen Boyles, a lawyer with Earthjustice, one of the environmental groups that filed the lawsuit, said in a statement. ''The fish in the Klamath are in real trouble right now; they need real action, not vague promises.''

The fight over the river has grown intensely partisan, with Democrats accusing the Bush administration of siding with farmers for political reasons and suggesting the Klamath water policy reflects a broader Republican agenda against the environment.

Representative Mike Thompson, a Democrat from California who represents some of the Klamath basin, supported the lawsuit, and some state biologists with the California Department of Fish and Game also publicly questioned the scientific analysis behind the federal policy.

''On one hand I am pleased with the result,'' Mr. Thompson said of the judge's ruling, ''but on the other, it is sad commentary that you have to go to this extreme in order to get the agency that is charged with protecting fish and wildlife to come to the table and try to hammer out a solution.''

Mr. Rethmeier of the Justice Department said it was unclear whether the ruling would be appealed. But he said there was no doubt that the National Marine Fisheries Service could address the problems raised by the judge.

Jeffrey S. McCracken, a spokesman for the Bureau of Reclamation, said the agency expected that the judge's ruling would have no immediate effect on water for farmers.